Bank of the United States v. Hatch. 6 P. and rely solely on that suit for a recovery? We are of opinion that the intention of the parties, apparent on the contract, was to suspend the right to recover the debt until the next term of the court. It is scarcely possible that Pearson should have been willing to give a valuable consideration for the delay of a term, and yet have intentionally left avenues open to be harassed by a new suit in the interval. Indeed, no other remedy, except in that particular suit, seems to have been within the contemplation of either party. If the bank had engaged, for a like consideration, not to sue Pearson on the bill for the same period, there could have been no doubt that it would be a contract suspending all remedy. What substantial difference is there between such a contract and a contract to suspend a suit already commenced, which is the only apparent remedy for the recovery of the bill during the same period? Is it not the natural, nay, neces sary intendment, that the defendant shall have the full ben[*259] efit of the whole period *as a delay of payment of the debt? It is no answer that a new suit would be attended with more delay. That might or might not be the case, according to the different course of practice in different States; and, at all events, it would harass the party with new expenses of litigation. But the true inquiry is, whether the parties did or did not intend a surceasing of all legal proceedings during the period. We think that the just and natural exposition of the contract is, that they did. If this, then, be the correct exposition of the contract, the case clearly falls within the principle laid down by this court in M'Lemore v. Powell, 12 Wheat. 554. That was the case of a voluntary agreement, without consideration, by the holder with the drawer of the bill, for delay, after the parties had been fixed by due notice of the dishonor of the bill. The court held that the agreement was not binding in point of law, and therefore it did not exonerate the indorser. On that occasion, the court said: "We admit the doctrine that, although the indorser has received due notice of the dishonor of the bill, yet, if the holder afterwards enters into any new agreement with the drawer for delay, in any manner changing the nature of the original contract, or affecting the rights of the indorser, or to the prejudice of the latter, it will discharge him. But, in order to produce such a result, the agreement must be one binding in law upon the parties, and have a sufficient consideration to support it," &c. "If the holder enters into a valid contract for delay, he thereby suspends his own remedy on the bill for the stipulated period; and if the indorser were to pay the bill, he could only be subrogated to the rights of the holder, and the drawer could or might have the same equities against him as against the holder himself. If, there M'Donald's Heirs v. Smalley. 6 P. fore, such a contract be entered into without his assent, it is to his prejudice, and discharges him." The same reasoning applies with full force to the present case. If the bank could not have any rem edy on the bill to recover payments, but was bound to wait until the next term of the circuit court, the defendant Hatch, as indorser, could not, by paying the bill, place himself in a better situation. He would be liable to the same equities, under the agreement suspending the remedy, as the bank. The same principles which this court adopted in the case of M'Lemore v. Powell, 12 [260] Wheat. 554, will be found illustrated and confirmed in an able opinion of Mr. Chancellor Kent, in King v. Baldwin, 2 Johns. Ch. 554, and applied to a case case between principal and surety. There are other authorities to the same effect; Gould v. Robson, 8 East, 576; Laxton v. Peat, 2 Camp. 185; Hubbly v. Brown, 16 Johns. 70; Bayley on Bills, 234. There is a recent case in England which approaches very near to the circumstances of the present case. We allude to Lee v. Levi, 1 Carr. & Payne, 553. In that case the holder, after suit brought against the acceptor and the indorser, had taken a cognovit of the acceptor, for the amount of the bill, payable by instalments; and, at the trial of the suit against the indorser, Lord Chief Justice Abbott thought that this was a giving time which discharged the indorser, and the jury found a verdict accordingly. That case afterwards came before the whole court for revision, (6 Dowl. & Ry. 475,) and was then decided upon a mere collateral point, viz: that the defence having arisen after suit brought against the indorser, should have been taken advantage of by special plea, and could not be given in evidence under the general issue; so that the ruling of the lord chief justice was not brought directly into judgment. It was not, however, in any measure overruled. Upon the whole, we are of opinion, upon the ground of the agreement stated in the special verdict being a virtual discharge of the indorser, that the judgment of the circuit court ought to be affirmed, with costs. JAMES M'DONALD'S HEIRS, Appellants, v. FREEMAN SMALLEY, and others, Appellees. 6 P. 261. An entry of land made in the name of a person who was dead at the time of the entry, is a nullity in the State of Ohio. Vinton and Doddridge, for the appellants. Corwin and Bibb, for the appellees. Conard v. Pacific Insurance Company of New York. 6 P. MARSHALL, C. J., delivered the opinion of the court. This suit was brought in the court of the United States for the seventh circuit and district of Ohio, to obtain a conveyance for land which the defendants hold by a senior patent, and which the plaintiffs claim under a prior entry. The bill was dismissed by the circuit court, and the plaintiffs have appealed to this court. Serious doubts exist respecting the validity of the entry under which the claim has been made, and several points have been discussed at the bar. It is unnecessary to decide more than one of these questions, because that is decisive of the case. David Anderson, in whose name the entry under which the plaintiffs claim was made, was dead at the time. The entry, therefore, as was determined in Galt and others v. Galloway, 4 Pet. 332, 345, is, in the State of Ohio, a nullity. This being the foundation of the plaintiff's title, they must fail in their action. Counsel at the bar have endeavored to distinguish this case from that, by treating the entry as one made in the name of the wrong person, through the mistake of the surveyor. We do not think he is sustained by the fact or the law of the The decree is affirmed, with costs. case. 12 P. 264; 7 H. 262. JOHN CONARD, Marshal of the Eastern District of Pennsylvania, the United States, Plaintiffs in Error, v. THE PACIFIC INSURANCE COMPANY OF NEW YORK, Defendants. 6 P. 262. A consignment of a homeward cargo being "to order," the plaintiffs, who were indorsees of the bills of lading, had a right to enter the goods, under the 36th and 62d sections of the Collection Act, of March 2, 1799, (1 Stats. at Large, 627.) The importer has such a right of possession as general owner, that, after he has duly offered. to enter the goods and pay the duties, he may maintain an action of trespass for a wrong. ful taking thereof. THE case is stated in the opinion of the court, and in the former reports of the same case. It was submitted, without argument, by Taney, (attorney-general,) for the United States. Ogden and Sergeant, contrà. [ *279 ] * STORY, J., delivered the opinion of the court. This case, upon all the leading points, presents the same Conard v. Pacific Insurance Company of New York. 6 P. facts and circumstances which were before this court in the cases of Conard v. The Atlantic Insurance Company, [*280 ] 1 Pet. 386, and Conard v. Nicoll, 4 Pet. 291. Those cases underwent the most deliberate consideration of the court, and we are entirely satisfied with the doctrines maintained in them. The present case has been submitted without argument, and contains at large the charge of the learned judge who presided at the trial; a practice which this court has often disapproved, and deems incorrect, and for the continuation of which nothing but the peculiar circumstances of the present class of cases could furnish any just apology. The only points to which it is now necessary to advert, are those which are not embraced in the former cases, reported in the first and fourth volumes of Peters's Reports. At the trial, the plaintiffs offered to prove a demand of the collector, and a refusal by him after the levy was made to permit an entry and delivery of the goods at the custom-house; but the counsel for the defendant objected to such proof, and the objection was overruled by the court, and the evidence given. And we are of opinion that this evidence was properly admitted. The ground of this objection must have been that the plaintiffs were not the legal owners and consignees of the goods, and so were not entitled to make an entry of them at the custom-house, and to have a delivery of them after such entry. But to this the proper answer is given by the learned judge in his charge, in conformity to the prior decisions of this court. The plaintiffs were both owners and consignees. The consignment of the homeward cargo was to order; and the plaintiffs, in virtue of the assignment, and the indorsement and possession of the bills of lading, and the other transactions stated in the case, became consignees as well as owners of the homeward cargo; and as such were already entitled to enter the same, and to have delivery thereof upon giving ,bonds in conformity with the provisions of the Duty Collection Act of 1799, c. 128. The 36th and 62d sections of that act clearly confer the right; and the proviso of the 62d section in nowise restrains it in cases like the present. Another point which appears to have been pressed by the counsel for the defendant at the trial is, that the United States had a lien upon and a possession of the goods constituting the homeward cargo, at the time of their importation, for the amount [*281 ] of duties accruing thereon; and the plaintiffs not having an actual or constructive possession, could not maintain the present action; and Harris v. Dennie, 3 Pet. 292, was relied on in support of this objection to the recovery; but that case has no bearing on the point. It decided no more than that no creditor could, by any Conard v. Pacific Insurance Company of New York. 6 P. attachment or process, take the goods upon their importation out of the possession of the United States, until the lien of the United States for the duties accruing thereon was actually discharged, either by payment of the duties, or by giving security therefor, according to the requirements of law on the part of the importer. There is no doubt that if the importer has the general right and property in the goods, that right draws after it a constructive possession, and the master of the ship is but a bailee, maintaining that possession for his benefit. And there is no pretence to say that the property of the importer in the goods is devested by any possession subsequently taken by the United States after the arrival of the goods, for the purpose of maintaining their lien for duties. That possession is not adverse to the title of the importer; and, indeed, it may be properly deemed not so much an exclusive as a concurrent and mixed possession, for the joint benefit of the importer and of the United States. It leaves the importer's right to the immediate possession perfect, the moment the lien for the duties is discharged; and if he tenders the duties, or the proper security therefor, and the collector or other officer refuses the delivery of the goods, it is a tortious conversion of the property, for which an action of trespass or trover will lie. But this case does not even present that peculiarity; for the seizure of the goods was not under any authority to take possession in order to secure the duties, but it was made by the defendant, as marshal, to satisfy an execution against Edward Thomson, who had at the time no property or interest in the goods. The act was, therefore, the common case of an unlawful seizure and levy of one man's property to satisfy an execution against another man; and in such a case trespass is clearly a fit and appropriate remedy. Another point was, that the agreement of the 9th of October, 1826, stated in the case, connected with the facts in evidence amounted to a release or waiver by the plaintiffs, of all demand for, [* 282] * damages arising from the acts of the officers of the United States in taking possession of and detaining the goods in question. Upon this point, it is unnecessary to say more than that the agreement itself repels any such notion of a release or waiver; and it was expressly overruled in Conard v. Nicoll, 4 Pet. 292. Another point was as to the rule of damages; and here the learned judge in his charge seems to have laid down the very rule contended for by the defendant's counsel. The case not being one which called for vindictive or exemplary damages, he charged the jury, (in conformity to the decision in Conard v. Nicoll,) that the plaintiffs were entitled to recover such damages only as they had proved themselves entitled to on account of the actual injury sustained by the seizure |